Litigation: Will a Party’s Death Kill the Case?

J. Patrick Diener Edmonds Lawyer

Litigation can be complex and full of twists, turns and obstacles.  One of the biggest, and often most unexpected, obstacles occurs when one of the parties passes away before the litigation is resolved.  Defendant clients will often say: “So I am off the hook now, right?  The case is over?”  And plaintiff clients may ask “Do I get an automatic win now?” And I must tell them “No.”  While the party may be gone, the party’s claims and defenses can live on.

Washington’s “Survival Statute” is comprehensive (RCW 4.20.046).  The only real prerequisite to maintaining an action is that the decedent could have maintained the action had they lived.  When a party dies, whether the litigation continues will depend on whether their estate is probated, and a personal representative or administrator is appointed to represent their interests.  The only person who can pursue a deceased plaintiff’s claims is the personal representative or administrator of their estate. Similarly, without their estate’s substitution into the case, a departed defendant cannot reasonably defend against a surviving plaintiff’s claims.  Once an estate is substituted in for the deceased party, the estate (through the personal representative or administrator) can continue the case just as if the party were still alive. 

That does not mean that the case will languish indefinitely waiting for the estate to substitute into the case in place of the former party.  RCW 4.20.050 sets a one-year time limit for an estate to be opened and substituted in to take over the claims and defenses.  The time limit is not absolute, however, as Washington courts have ruled that ultimately the time limit is discretionary to the court.  This means that a judge must be convinced that sufficient time has passed, and if that judge is inclined to give more than a year, then the case will continue to sit idle until the judge is satisfied that a sufficient period has passed.  At that time, a surviving defendant can move for the dismissal of the action, or a surviving plaintiff can move for a default judgment.

In the case of a surviving defendant, the result is simple: the case is over.  In the case of a surviving plaintiff, it is more complex. Sure, you can get a default judgment against a dead person, but how do you enforce that judgment?  Without an estate, there is nothing and no one to enforce the judgment against.  This will often necessitate the judgment holder opening an estate for the dearly departed defendant, and that is an entirely separate article. Suffice it to say, it can get somewhat complicated.

Ultimately, if a party dies, the case is put on pause until the party’s estate can substitute into the case, at which point it will continue until it reaches a conclusion.  Nevertheless, the death of a party can still have a significant impact on the case.  If that party’s testimony was key to the claims or defenses of the case, and that testimony was not preserved through deposition prior to their passing, it may make the claim or defense impossible to pursue successfully.  It can also result in significantly reduced economic damages and can effectively moot injunctive relief.  For example, if damages were continuing because of a defendant’s ongoing actions, those damages will but cut off when the defendant dies.  Similarly, if a plaintiff is asking a court to order the defendant to do or not do something (injunctive relief), that requested remedy will become useless (moot) when the defendant ceases to exist. 

At the very least, the death of a party will prove to delay litigation and may significantly affect how the case proceeds from that point forward.  But the law has learned to plan for the death of litigants, and with enough attention and effort, most often the case will proceed until a settlement or court issued decision is reached.

To learn more about Litigation: Will a Party’s Death Kill the Case?, please contact Beresford Booth at or by phone at (425) 776-4100.

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